UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PERRY SPILLER, et al. , Plaintiffs ,

v. DISTRICT OF COLUMBIA, et al. , Defendants

. Civil Action No. 16-2059 (RDM)

MEMORANDOM OPINION AND ORDER Plaintiffs Perry Spiller and Jam es McCray bring this action aga inst the District of Columbia and two Metropolitan P olice Department Officers, who a re identified in the complaint as Timothy Murphy and Robert Bar illaro. Spiller and McCray all ege that they were unlawfully arrested, injured, and detained, and that Spiller was malicious ly prosecuted, after police officers observed them laughing at a fight outside a nightclub in Washin gton, D.C. The two men bring suit under 42 U.S.C. § 1983 and vari ous provisions of the Const itution, and they also assert common law claims for false arrest, false imprisonment, neglige nt supervision and training, and negligent infliction of emotional distress. Defendants move to dismiss Plai ntiffs’ claims in part pursuant to Rule 12(b)(6), or in the alternative, for summary judgment in part under Rule 56. For t he reasons explained below, the Court concludes that (1) Plainti ffs fail to state a substantive due process claim; (2) Spiller fails to state a claim for “malic ious prosecution” under § 1983 1 but does so under D.C. law; (3)

1 Although Spiller and McCray allege that their constitutional rights were violated by the District of Columbia and the de fendant police officers, they gr oup their § 1983 claims by reference to analogous common law torts.2 Plaintiffs’ § 1983 “negligent in fliction of emotional distress” claim is duplicative of their § 1983 “negligent supervisi on and training” claims; and (4) Plaintiffs fail to state claims for negligent supervision and training, regardl ess of whether those claims ar e premised on the common law or § 1983. The Court will, accordingly, GRANT in part and DENY in part Defendants’ motion to dismiss, or in the alternativ e, for summary judgment.
I. BACKGROUND In considering Defendants’ mo tion to dismiss, the Court will a ccept Plaintiffs’ factual allegations as true. See Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009). Although Plaintiffs’ allegations are not entitled to that same deference for purpose s of Defendants’ motion for summary judgment, Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248–49 (1986), the facts relevant to the determinati on of that motion—namely, the conten t and date of the notices sent to the District—are undisputed. On May 30, 2015, McCray and Spiller stood outside a nightclub, which was closing for the night. Dkt. 1 at 6 (Compl . ¶ 19). Around midnight, they o bserved two people begin to fight in a “loud and violent” manner. Id . (Compl. ¶ 19). Barillaro and his partner were in a police ca r down the block and were soon appr oached by one of the individua ls involved in the fight. Id

. (Compl. ¶ 19). Spiller and McCray “stood nearby and laughed atthe incident taking place.” Id

. (Compl. ¶ 20). The police officer s came over to the two men, a nd “asked [them] to leave the scene where the fight took place.” Id . (Compl. ¶ 20). The police di d not arrest either of the individuals involved in the fight. Id . (Comp. ¶ 20). McCray and Spiller relocated to two “chairs in an alleyway adjacent to the s treet where the incident took p lace.” Id . (Compl. ¶ 21). The officers “then re-approached a nd grabbed the Plaintiffs and sai d . . . ‘You’re under arrest for3 noise violation!’” Id. (Compl. ¶ 21). After a brief c onversation in which Spiller i nsisted that he and McCray had had nothing to do with the earlier fight, Barill aro “tackled . . . Spiller by using his hands and arms to . . . forcef ully conduct a takedown of [S piller].” Id . at 7 (Compl. ¶ 22). Spiller “suffered swelling and abr asions to his legs, [a] sore throat, and . . . numbness on the left side of his body” as a re sult of the “takedown.” Id . at 7, 8 (Compl. ¶¶ 22, 25). The other officer, “using his arms and hands and full force of his weight,” also “ tackl[ed] . . . McCray to the ground using an unnecessary and exce ssive amount of force.” Id . at 7 (Compl. ¶ 22). While Barillaro’s partner “held down” McCray, Barillaro “grabbed . . . McCray’s hands and with full force . . . yanked . . . McCray’s right hand and slammed [it] o n the hard ground causing . . . McCray to suffer a broken hand.” Id . (Compl. ¶ 23). Both men required treatment for the injuries they sustained whe n the officers tackled them. Id . at 7–8 (Compl. ¶¶ 24–25). McCra y was arrested for “Making No ise at Night,” despite having “made no noise.” Id. at 8 (Compl. ¶ 26). He was “sh ackled and handcuffed and sent t o D.C. Superior Court for proces sing,” but “[a]fter spending seve ral hours in jail for having committed no offense,” he was released without being charged. Id . (Compl. ¶ 26). Spiller was arrested for “Making Noise at Ni ght” and for “Assault on a Poli ce Officer,” although he was not charged with the former. Id . (Compl. ¶ 27). He was, however , charged with “Assault on a Police Officer” and “Carrying a D angerous Weapon” (nunchucks “a llegedly recovered from his backpack pursuant to a search incident to arrest”). Id. (Compl. ¶ 27). On October 5, 2015, all charges were dismissed by the United States Attorney’s Office, and “the assigned prosecuting attorney informed” Spiller’s attorney that the office “had open ed an internal investigation4 against” the two officers involved in the arrest. 2 Id . at 8–9 (Compl. ¶ 27). Four days later, Spiller and McCray’s counsel sent letters to the Mayor of the D istrict of Columbi a asserting their “intention to file sui t against the District of Columbia for [t heir] unlawful arrest[s] and for the intentional, unjustif iable, and brutal physical assault of [the ir] person[s] by Metropolitan Police Department (MPD) offi cers.” Dkt. 19 at 29; id. at 31.
II. LEGAL STANDARD “To survive a motion to dismiss, acomplaint must contain suffi cient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal , 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A claim is plausible if “the plaintiff pleads fact ual content that allo ws the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although “detailed factu al allegations” are not required, the complaint mus t contain “more than labels and conclusions, [or] a formulaic recitation of the elements of a cause of action.” Twombly , 550 U.S. at 555. The Court must “assume [the] veracity” of “well- pleaded factual allegations,” Iqbal , 556 U.S. at 679, and must “grant [the] plaintiff the bene fit of all inferences that can b e derived from the facts alleged,” Sparrow v. United Air Lines, Inc. , 216 F.3d 1111, 1113 (D.C. Cir. 2000) ( internal quotation marks omitted). The Court, howev er, need not accept “a legal c onclusion couched as a factual allegation.” Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 555).

2 In Spiller’s notice to the Distr ict of Columbia of his intent to file suit, he described this sequence of events slightly diffe rently, stating that “[a] few weeks before the October 5, 2015 trial date, the United States Attorney’s Office opened an inves tigation against all officers involved in this matter,” a nd that “[o]n October 2, 2015, the U nited States Attorney’s Office entered a nolle prosequi in U.S. v. Perry Spiller.” Dkt. 19 at 31. The exact chronolo gy of the dismissal and the investigation is not relevant to the present motion.5 Summary judgment is granted “if t he movant shows that there is no genuine dispute as to any material fact and the movant i s entitled to judgment as a m atter of law.” Fed. R. Civ. P. 56(a); see Liberty Lobby , 477 U.S. at 247–48; Holcomb v. Powell , 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if itis capable of affecting the outcome of the litigation. Holcomb , 433 F.3d at 895; Liberty Lobby , 477 U.S. at 248. A dispute is “genui ne” if the evidence is s uch that a reasonable jury could r eturn a verdict for the nonmoving party. See Scott v. Harris , 550 U.S. 372, 380 (2007); Liberty Lobby , 477 U.S. at 248; Holcomb , 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must s upport the assert ion by . . . citing to particular parts of materia ls in the record . . . .” Fed. R. C iv. P. 56(c)(1)(A). The party seeking summary judgment “bears the hea vy burden of establishing that the merits of his case are so clear that expedited action is justified.” See Taxpayers Watchdog, Inc. v. Stanley , 819 F.2d 294, 297 (D.C. Cir. 1987).
III. ANALYSIS Both sides have, at least modestly, narrowe d the issues for dec ision at this early stage of the litigation. As an initial matter, although Plaintiffs init ially named Timothy Murphy as one of the two individual defendants , no one by that name works for MP D. Plaintiffs acknowledge as much, and suggest they will seek l eave to amend their complaintto name the correct officer in the future. See Dkt. 18. For now, the Court will dismiss “Timothy Murphy” fro m the suit by virtue of Plaintiffs’ concession. 3 Plaintiffs also concede that C ount I, alleging false arrest, and Count II, alleging false impri sonment, should be merged. Dkt. 19 at 12. For their part, Defendants have not moved to dism iss Count VII, alleging “gross negligent excessive force,”

3 The suit originally named the U nited States Attorney for the District of Columbia and her office as defendants, but Plai ntiffs voluntarily dismissed thos e claims. Dkt. 16.6 and they concede that Count VIII, insofar as it alleges a commo n law negligent infliction of emotional distress claim, st ates a claim. Dkt. 13 at 21–22; Dkt. 21 at 5. The remaining claims are discussed below.
A. Substantive Due Process Count III alleges “that the Defendants denied the Plaintiffs su bstantive due process;” “that the negligent conduct of the officers ‘shocks the conscie nce;’” and that the officers “conducted a reckless investigation” by failing to establish pr obable cause prior to arresting Spiller and McCray because they “failed to properly investigate the arrest area, scene and location.” Dkt. 1 at 12 (Compl . ¶¶ 50–51). Defendants, in res ponse, assert that the officers’ alleged actions are not “so egreg ious, so outrageous, that [the y] may fairly be said to shock the contemporary conscience.” Abdelfattah v. U.S. Dep’t of Homeland Sec. , 787 F.3d 524, 540 (D.C. Cir. 2015) (quoting County of Sacramento v. Lewis , 523 U.S. 833, 847 n.8 (1998)). While that may be true, the Court need not reach the question, becaus e the actions underlying the due process claim are barred by the threshold application of the “m ore [] specific provision rule” announced in Graham v. Connor , 490 U.S. 386 (1989). Lewis , 523 U.S. at 844. That rule holds that when “an explicit textual source of constitutional protect ion against [the] sort of physically intrusive governmental conduct” at issue exists, that more spec ific provision, “not the more generalized notion of ‘ substantive due pro cess,’ must be the gu ide for analyzing th[o]se claims.”
Graham , 490 U.S. at 395. The relevant conduct at issu e in this case is MPD’s se izure of McCray and Spiller without probable cause . The claim thus “arises in the context of an arrest or investigatory stop of a free ci tizen,” and “is most properly ch aracterized as one invoking the protections of the Fourth Amendment.” Id . at 394. Because that claim is “‘covered by’ the Fourth Amendment,” “[s]ubstantiv e due process analysis is there fore inappropriate.” Lewis , 5237 U.S. at 843. Defendants’ motion t o dismiss Plaintiffs’ substan tive due process claim will, therefore, be granted.
B. Malicious Prosecution 1. Section 1983 Spiller alleges that he was subjec t to malicious prosecution fr om May 30, 2015 to October 5, 2015, and, in particular, that he was “arrested,” “b eaten,” “prosecuted,” and “forced to come to Court,” even though he did not commit a crime. Dkt. 1 at 14–15 (Compl. ¶¶ 66–70). Spiller does not expressly invoke § 1983, although he labels th e claim a “Fourth Amendment Malicious Prosecution Claim.” Dkt. 1 at 14–15 (Compl. ¶¶ 66–70 ). Defendants treat the count as a claim under § 1983 in their motion to dismiss, and argue t hat such a claim “hinges on the continued detention of a plaintiff once his/her crim inal prosecution is instituted .” Dkt. 13 at 19 (citing Wallace v. Kato , 549 U.S. 384 (2007)). Because “Spiller makes no allegation t hat he was held in custody subsequent to the initiation of the criminal pr osecution,” Defendants argue he has failed to state a claim. Id. at 19–20. The nub of the current c ontroversy, then, is whether something less than detention i n a prison or jail—which, for cl arity, the Court refers to as “incarceration”—can support a § 19 83 claim for malicious prosec ution, and if so, whether Spiller has nevertheless failed to allege a sufficiently severe depriva tion of his liberty. Contrary to Defendants’ categor ical argument, in the D.C. Circu it, incarceration is not an essential element of a malic ious prosecution claim under § 1983 . Instead, “malicious prosecution is actionable unde r 42 U.S.C. § 1983 to the extent that the defendant’s actions cause the plaintiff t o be unreasonably ‘seized’ without probable cause, i n violation of the Fourth Amendment.” Pitt v. District of Columbia , 491 F.3d 494, 511 (D.C. Cir. 2007) (emphasis added); accord Amobi v. D.C. Dep’t of Corr. , 755 F.3d 980, 993 (D.C. Cir. 2014); Demery v. Montgomery Cty. , 602 F. Supp. 2d 206, 212 (D.D.C. 2009) (holding that plaintif f alleging “the8 unreasonable seizure of his person ” stated a claim for maliciou s prosecution under § 1983). Exactly what pretrial restrictions constitute “seizures” for th is purpose, however, is less clear. In the D.C. Circuit’s only direct discussion of the issue, it conc luded that a ten-day commitment to a halfway house constituted a sei zure sufficient to support a c laim for malicious prosecution.
Pitt , 491 F.3d at 511. Courts within this circuit have also held that short periods o f detention directly following an arraignmen t or “being restricted by pretr ial conditions and being compelled to appear in court” can constitute a seizure sufficient to stat e a § 1983 malicious prosecution claim. See, e.g. , Mehari v. District of Columbia , 268 F. Supp. 3d 73, 82 (D.D.C. 2017); Thorp v. District of Columbia , 142 F. Supp. 3d 132, 145–46 (D.D.C. 2015) (suggesting that “d rug testing and weekly interviews with court officials” constitute a seizur e in context of § 1983 malicious prosecution claim). Other circuits have produced a dive rse set of standards for dis cerning whether conditions short of incarceration are su fficient to support a § 1983 malic ious prosecution claim. The Second Circuit has held that re strictions on travel and the req uirement that a defendant make “periodic court appearances” constitute sufficient limitations on liberty for purposes of a § 1983 malicious prosecution claim. See Murphy v. Lynn , 118 F.3d 938, 946 (2d Cir. 1997). The Third Circuit has found similar terms of pretrial release sufficient to state a § 1983 malicious prosecution claim, and it has expressly recognized that, under its capacious definition of seizure, “nearly all individuals alleging m alicious prosecution in cases against public officials will be able to sue under section 1983 because travel restrictions and required attendance at court hearings inhere in many prosecutions.” See Gallo v. City of Philadelphia , 161 F.3d 217, 225 (3d Cir. 1998); see also id. at 222 (holding that it “amounted t o a seizure” when a defendan t “was prohibited from traveling outside New Jersey and Pennsylvania” in addition to having to “post a9 $10,000 bond,” “attend all court heari ngs including his trial a nd arraignment,” and “contact Pretrial Services on aweekly basis”). And t he Fifth Circuit h as held that a “summons to appear in court, coupled with the requi rements that [the plaintiff] ob tain permission before leaving the state, report regularly to pretrial services, sign a personal r ecognizance bond, and provide federal officers with financial and i dentifying information, diminished [the plaintiff’s] liberty enough to render him seized under the Fourth Amendment.” Evans v. Ball , 168 F.3d 856, 861 (5th Cir. 1999), abrogated on other grounds by Castellano v. Fragozo , 352 F.3d 939 (5th Cir. 2003) (en banc). By contrast, the First and Tenth Circuits have held that compel led pretrial appearances and other common release conditio ns, without more, are not seiz ures sufficient to support a § 1983 malicious prosecution claim because, “if the concept of a seizure is regarded as elastic enough to encompass standard cond itions of pretrial release, vi rtually every criminal defendant will be deemed to be seized pendin g the resolution of the charg es against him.” Nieves v. McSweeney , 241 F.3d 46, 55 (1st Cir. 2001); accord Becker v. Kroll , 494 F.3d 904, 915–16 (10th Cir. 2007). Still other circuits have declined to delineate th e exact boundaries of w hat constitutes a pretrial seizure while simultaneously cautioning against an o verly broad interpretation that encompasses the standard c onditions of pretrial release. See, e.g. , Kingsland v. City of Miami , 382 F.3d 1220, 1235–36 (11th Cir. 2004) (holdi ng that being “re quired to (1) pay a $1,000 bond; (2) appear at [an] arraignment; and (3) make two trips from New Jersey to Florida to defend herself in court, pursuant to the authority of the state” did n ot “constitute a significant deprivation of [the plaintiff’ s] liberty” and therefore did not “constitute[] a sei zure violative of the Fourth Amendment”); Karam v. City of Burbank , 352 F.3d 1188, 1193–94 (9th Cir. 2003) (holding that a person not charg ed with a felony was not seized when only restrictions on liberty10 were required court appearance s and obtaining permission to lea ve the state); Johnson v. City of
Cincinnati , 310 F.3d 484, 492–93 (6th Cir. 2002) (holding that the imposi tion of travel restrictions, without “additional restrictions designed to comp el an ultimate court appearance, such as obligations to post bond, attend court hearings, and co ntact pretrial services” did not constitute a seizure). This diversity of outcomes flows from the absence of controllin g Supreme Court precedent on the issue. As the Second Circuit noted in Murphy v. Lynn , while the Supreme Court in Albright v. Oliver , 510 U.S. 266 (1994), “declined to address th e Fourth Amendment implications” of various pretria l restrictions in the course of analyzing a § 1983 malicious prosecution claim, four Justices agreed “that the imposition of restrictive conditions of release constitutes a seizure within the meaning of the Fourth Amendmen t.” Murphy , 118 F.3d at 946 (citing Albright , 510 U.S. at 278–79 (Ginsburg, J., concurring); id. at 307 (Stevens, J., dissenting); id. at 290 (Souter, J., concurring)) . Justice Ginsburg, concurrin g in Albright , offered the most detailed treatment of t he issue, while also articulati ng the broadest c onception of what constitutes a pretrial seizure: [A] defendant incarcerated until trial no doubt suffers greater burdens [than one released]. That difference, however, should not lead to the co nclusion that a defendant released pretrial is not still “seized” in the consti tutionally relevant sense. Such a defendant is scarcely at liberty; he remains apprehended , arrested in his movements, indeed “seized” fo r trial, so long as he is bound to appear in court and answer the state’s charges. He is equally bound to appear, and is hence “seized” for trial, when the state employs the less strong-arm means of a summons in lieu of arrest to secure his presence in court. 510 U.S. at 279 (Ginsburg, J., concu rring). This approach has been much discussed in the case law cited above, but has only been embraced by the Second and T hird Circuits. Although later Supreme Court pre cedent indicates that certain r estrictions are clearly pretrial seizures sufficient to give rise to a § 1983 malicious prosecution claim, those cases do11 little to clarify the lower bounds of what constitutes a seizur e. The Court recently held, for example, that “the Fourth Amen dment governs a claim for unlawfu l pretrial detention even beyond the start of legal process.” Manuel v. City of Joliet , 137 S. Ct. 911, 920 (2017). That holding supports the self-eviden t conclusion that detention con stitutes a seizure for purposes of the Fourth Amendment, but it says nothing about whether lesser interferences with liberty will suffice. Similarly, the Court’s earlier holding in Wallace v. Kato adds no further guidance. See 549 U.S. at 389–90 (describing the “to rt of malicious prosecuti on” as “remed[ying] detention accompanied . . . by wrongful institution of legal process” (em phasis omitted)). Indeed, rather than holding “that a claim for malicious prosecution pursuant t o § 1983 does not arise unless and until the claimant is unlawfully detained pursuant to the comme ncement of his/her prosecution” as Defendants argue, Dkt. 21 at 4–5, the Wallace decision expressly decline d to reach the issue, stating that it had “never explor ed the contours of a Fourth Am endment malicious-prosecution suit under § 1983,” and that it w ould “not do so here,” 549 U.S . at 390 n.2. The Supreme Court, moreover, has elsewhere stated t hat “a successful malicious pro secution plaintiff may recover . . . compensation for any arrest or imprisonment, including damage s for discomfort or injury to hi s health, or loss of time and de privation of the society.” Heck v. Humphrey , 512 U.S. 477, 484 (1994) (emphasis added). That Defendants’ position lacks s upport in the case law does no t, however, resolve the question of whether Spiller has ad equately alleged that he was “seized” within the meaning of the Fourth Amendment after the instigation of legal proceedings against him. The complaint states that Spiller “was depriv ed of his liberty” on the date o f his arrest and then “was arraigned and forced to come to Court on eve ry court date regarding the . . . arrest prior t o the case being dismissed on the merits.” Dkt . 1 at 15 (Compl. ¶¶ 68–69). The Court is persuaded that only a12 minimal restriction of the plain tiff’s liberty is required to s tate a claim, but nonetheless concludes that the allegations in Spiller ’s complaint do not satisfy even that modest demand. Indeed, putting aside legal conclusions , he merely pleads, without any elaboration, that he was required to appear in court. In his opposition brief, however, Spiller adds that he was “released [following his arraignment] on personal recogniz[ance] with rel ease conditions under the supervision of the Pretrial Services Agency.” Dkt. 19 at 21–22 . He describes those conditions as being “laborious and life[-] altering requirements.” Id. at 22. The Court may consider only the sufficiency of the allegations within the complaint on a motionto dismiss for failure to state a claim, see Hurd v. District of Columbia , 864 F.3d 671, 686 (D.C. Cir. 2017), but in light of the additional detail Spiller’s oppos ition brief indicates he may b e able to supply, the Court will dismiss this claim without prejudice. The Court will further o rder that he file an amended complaint that adds all relevant allegations regarding the exte nt to which he was “seized” during the allegedly malicious prosecution.
2. Common Law Defendants offer no substantial basis to dismiss Spiller’s mali cious prosecution claim under D.C. tort law. 4 Their motion to dismiss makes no attempt to address Spiller’s common law claim, and their reply does s o only cursoril y. In their re ply, they argue that “Spiller’s underlying suit did not terminate favorably,” an element of the common law claim in the District of Columbia. Dkt. 21 at 4. Courts considering this element mu st ask whether “the facts of the case indicate that [the] dis position reflects on the innocence of the defendant in the underlying

4 D.C. tort law does not require a “seizure” to make out a mali cious prosecution claim based on a prior criminal prosecution. See District of Columbia v. Tulin , 994 A.2d 788, 802 (D.C. 2010) (describing elements); Bumphus v. Smith , 189 A.2d 130, 131 (D.C. 1963) (same). The Court’s analysis of Spiller’s § 1983 cla im does not, therefore, resolve whether he has stated a common law claim.13 suit.” Brown v. Carr , 503 A.2d 1241, 1245 (D.C. 1986). Here, S piller has alleged that an investigation was opened into the officers responsible for his arrest, and he argues that the charges were dropped as a resultof his actual innocence, rathe r than the sort of technical or procedural ground that might s upport Defendants’ position. Dkt . 19 at 22; see Clark v. District of Columbia , 241 F. Supp. 3d 24, 35 (D.D.C. 2017). Given the conclusory n ature of Defendants’ argument and the requirement, on a motion to dismiss, that the Court draw reasonable inferences in Spiller’s favor, the Court de clines to dismiss Count VI to the extent it alleges a common law claim for malicious prosecution.
C. Negligent Infliction of Emotional Distress Count VIII alleges “that the gr ossly negligent misconduct by th e Defendant Police Officers” and the general “misc onduct” of the Defendants “direc tly and proximately caused Plaintiff Spiller to lose his sole source of employment, suffer serious physical injury including bodily injury, pain and sufferi ng, shock, anxiety, sleeplessnes s, and extreme emotional distress, and humiliation.” Dkt. 1 at 16 (Compl. ¶¶ 75–76). The complai nt is unclear whether this count alleges a violation of § 1983 or the common law, and Defendants initially moved to dismiss as to both theories of liability for fa ilure to state a claim. In th eir reply, however, Defendants withdrew their motion to dismiss Plaintiffs’ cla im of common la w negligent infliction of emotional distress, and now see k only to dismiss Plaintiffs’ cl aim to the extent it is premised on § 1983. Dkt. 21 at 5. They argue, in p articular, that Plainti ffs have failed to state a claim because “negligence causing a deprivation of property cannot gi ve rise to a constitutional due process violation pursuantto §1983.” Dkt. 13 at 21; Dkt. 21 a t 5. This argument is a non sequitur; Plaintiffs do at times allege monetary loses stemming from a loss of employment, but the complaint makes clear that they are also alleging “shock, anxiety, sleeplessness, and extreme14 emotional distress, and humiliation” resulting from a loss of l iberty, rather than property. Dkt. 1 at 16 (Compl. ¶ 76). Plaintiffs’ opposition further complicates the matter by abando ning the § 1983 argument as it relates to the individual officers, and instead arguing t hat the negligence re sulting in their emotional distress stemmed from MPD’s maintenance of “a policy, practice, or custom” regarding arrests of innocen t onlookers. Dkt. 19 at 24–25. Pl aintiffs then repeat that their “unlawful arrest” resulted in “ the application of unnecessary an[d] excessive force” directly attributable “to the training and supervision of the Defendant Officers.” Id. at 25. Thus clarified, this claim is identical to the ne gligent supervision and traini ng allegations contained in Counts IV and V. Compare id. , with id. at 16–19. Because these claims all allege that the District of Columbia’s training, policies, a nd procedures led to the depriv ation of Plaintiffs’ civil rights in violation of § 1983, the Court will dismiss Count VIII—insofar as it seeks to advance a distinct claim under § 1983—on the same grounds discussed in the context of Counts IV and V below. To the extent Count VIII allege s a common law claim, however, D efendants do not seek dismissal, and thus that more limited claim stands.
D. Negligent Training and Supervision Plaintiffs allege in Counts IV a nd V that the District of Columbia’s negligent training and supervision of its police force led to Plaintiffs’ injuries. T hey allege that the District of Columbia fail[ed] to maintain adequate policies, fail[ed] to adequately train, supervise, and control police officers concerning enforcement of District of C olumbia laws[] [and] street encounters with individua ls lawfully on the streets of the District of Columbia, fail[ed] to investigate and impose discipline on poli ce officers who employ[ed] improper investigati on methods, and fail[ed] to adop t other remedial measures and policies to ensur e that such violations do not rec ur.15 Dkt. 1 at 5 (Compl. ¶ 16). Briefl y stated, Plaintiffs argue th at the policies and procedures of the District were insufficient to pr event the behavior that led to Plaintiffs’ injuries and that the District failed to adequately supe rvise the defendant police of ficers. Id. at 12–14. The complaint does not specify whether these c laims are brought under the com mon law or § 1983. Defendants argue that any common law claim must be dismissed for failure t o comply with the D.C. notice statute, and they further argue that Plaintiffs have failed to state a claim for negligent supervision and training, whether framed a s arising under the common law or § 1983. The Court discusses these arguments in turn.
1. Compliance with Statutory Notice Requirement Defendants first argue that Pla intiffs failed to provide the no tice to the District required under D.C. law. Dkt. 13 at 13–15. The provision governing tha t notice, § 12-309 of the D.C. Code, states that: [A]n action may not be maintained against the District of Colum bia for unliquidated damages to person or property un less, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given n otice in writing to the Mayor of the District of Columbia of the approximate time, plac e, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular c ourse of duty, is a sufficient n otice under this section. D.C. Code § 12-309. This requirement serves two purposes. Fir st, it “protect[s] the District of Columbia against unreasonable claims,” and, second, it ensures “reasonable notice . . . so that the facts may be ascertained and, if possible, deserving claims adj usted and meritless claims resisted.” Gaskins v. District of Columbia , 579 A.2d 719, 721 (D.C. 1990) (quoting Pitts v. District of Columbia , 391 A.2d 803, 807 (D.C. 1978)). “[A]lthough strict compliance wi th § 12-309’s requirement that timely notice be given to the District is mandatory, greater liberality is appropriate wi th respect to the content of the notice.” Wharton v. District of Columbia , 666 A.2d 1227, 1230 (D.C. 1995). In the present16 case, only notice of the “cause” and “circumstances” of Plainti ffs’ injuries is disputed. Notice is sufficient with respect to the “cause . . . of the injury or da mage” when “it recites facts from which it could be reasonably antic ipated that a claim against t he District might arise.” Pitts , 391 A.2d at 808–09. As to the circumstances of an injury, the noti ce “must be detailed enough for the District to conduct a prompt , properly focused investigatio n of the claim.” Washington v. District of Columbia , 429 A.2d 1362, 1366 (D.C. 1981). Plaintiffs, however, are no t required to identify “the precise legal the ory upon which [they] seek[] rel ief,” Maldonado v. District of
Columbia , 924 F. Supp. 2d 323, 333 (D.D.C. 2013) (quoting Shaw v. District of Columbia , No. 05-1284, 2006 WL 1274765, at *7 (D.D. C. May 8, 2006)), and “cou rts generally ‘resolve doubts in favor of finding complia nce with the statute,’” Maddux v. District of Columbia , 144 F. Supp. 3d 131, 148 (D.D.C. 2015) (quoting Wharton , 666 A.2d at 1230). Indeed, a potential litigant need not give any explicit notice of potential theories of liability—a police re port that describes the “the approximate time, place, cause, and circumstances of t he injury or damage” constitutes notice even though the police re port, by its nature, will make no express mention of a potential cause of action against the District. Shaw , 2006 WL 1274765, at *7 (quoting D.C. Code § 12- 309); accord Pitts , 391 A.2d at 809. Plaintiffs sent two notices in this case, neither of which stat ed that Spiller and McCray intended to bring suit for negl igent supervision or training. Instead, they alerte d the District of Plaintiffs’ “intention to file su it against the District of Col umbia for [their] unlawful arrest[s] and for the intentional, unjustifia ble, and brutal physical assaultof [their] person[s] by [MPD] officers.” Dkt. 19 at 29 (McCray Notice); id. at 31 (Spiller Notice). To Defendants, these descriptions—along with further details about the injuries to t he Plaintiffs, the dropped prosecutions, and the U.S. Attorney ’s Office investigation—are insufficient to meet both the17 “cause” and “circumstance” requirements under § 12-309. Defend ants argue that the notices “provide no factual basis or reas on for the District to anticip ate litigating any claim that the arresting officers were negligently supervised,” and “there is nothing in [the notices] alerting the District that it should investigat e the supervisi on of the MPD officers who arrested Plaintiffs.” Dkt. 13 at 15. Whether the notice provided by Pla intiffs suffices is a close q uestion. Some decisions interpreting § 12-309 have held tha t police reports (which the statute permits in lieu of a formal notice) that do not expressly ref er to training or supervision provided by the District still provide adequate notice with respect to n egligent training or supervisi on claims. 5 For example, in R. v. District of Columbia , 370 F. Supp. 2d 267 (D.D.C. 2005), the court held that a poli ce report describing attacks by one child on oth er attendees at a Distric t-owned and -operated summer camp sufficed to give notice of a c laim for negligent supervisi on. Id. at 272–74. The report contained “a description of [an ] alleged assault,” statements that the perpetrator might have assaulted others, and “a note that‘[the perpetrator] is the ol dest and he was in charge.’” Id. at 274. The District’s general supe rvision of the camp and the fa ct that any authority exercised by the camper who injured the plaintiffs must have come from the D istrict “suggest[ed] direct involvement by the District . . . from which the District could reasonably anticipate that tort claims against the Dis trict might arise.” Id. The court declined to req uire notice of specific theories of the District’s lia bility, instea d focusing on wheth er the possibility of any claims against the District could be inferred from the notice. Id. at 272–74. Similarly, in James v. District of Columbia , 610 F. Supp. 1027 (D.D.C. 1985), the dis trict court held that a report

5 Whether a police report provide s adequate notice is evaluated under the same standard as other forms of notice, such as the l etters sent in this case. See Washington , 429 A.2d at 1367 n.17.18 detailing the injuries suffe red by an arrestee, “witnesses’ statements regarding [a police officer’s] conduct,” “the police report of t he arrest itself,” and the res ults of a later internal misconduct investigation complied with § 12-309 because the notice therebyprovided “fully apprised” the District “in ample time of a ll it needed to know to anticipate and prepare to defend against” claims for “negligent supervis ion, training and discipline of i ts police officers.” Id. at 1031.
In Rieser v. District of Columbia , 563 F.2d 462 (D.C. Cir. 1977), the D.C. Circuit approved of a similar inference , holding that pol ice reports th at included “the time and place of [a] rape and murder,” identifyi ng information about the victim and suspect, and the fact that the suspect “was a District of Colu mbia parolee” working at the sit e of the crimes sufficed to give notice for a claim of negligent supervision against the Distric t. Id. at 476–77. The District had argued that the police reports in question gave no indication o f a potential negligence claim against the District because they did not reference any “failur e to provide adequate parole supervision.” Id. at 476. The D.C. Circu it disagreed, holding that the informati on in the reports “provided the District notice of the principal facts sufficientto lead it to those r elated facts which were peculiarly within its posse ssion, and that the requirement s of section 12-309 were satisfied.” Id. The notice letters sent by Plain tiffs sufficiently informed the District of the cause and circumstances of their injurie s. Spiller and McCray stated tha t “[t]he actions of the officers” in the course “of their official duties” “resulted in substantial bodily harm” because they “use[d] excessive force when they accosted, unlawfully arrested, and br utally assaulted” Plaintiffs. Dkt. 13-1 at 2; id. at 4. They go on to “give[] notice th at” they “intend[] to com mence a lawsuit against” the District on the basi s of these “actions taken agai nst [Plaintiffs] by the MPD officers.” Dkt. 19 at 31. Fro m these “facts . . . it could be reasonably anticipated that a claim19 against the District might arise.” Pitts , 391 A.2d at 809. The potential for claims against the District itself was further s uggested by the notices’ reference to improper conduct by two police officers and the fact that “[t] he United States Attorney’s Offi ce has opened an investigation against allofficers involved in this matte r.” Dkt. 13-1 at 4 (emphasis a dded); id. at 2. Defendants offer no decision for the proposition that a court s hould parse the notice provided claim by claim to determin e whether specific causes of action were mentioned, rather than determine generally whether the District was notified of apotential lawsuit. They cite to only a single district court cas e in which the court found that a plaintiff’s reference to “negligence” sufficed to give noti ce of negligent supervision a nd training claims. Dkt. 21 at 2–3 (citing Maldanado v. District of Columbia , 924 F. Supp. 2d 323 (D.D.C. 2013)). But that such specificity was sufficient to pr ovide notice sa ys nothing aboutwhether it was necessary. The cited case noted that “negligent supervision and negligent fail ure to train are both varieties of negligence that are reasonably l ikely to be alleged against the District arising out of [an] arrest by MPD officers,” and acknowledge d that while “the letter does not specifically list ‘negligent training’ or ‘negligent supervis ion’ as potential causes of act ion, such ‘precise exactness is not absolutely essential.’” Maldanado , 924 F. Supp. 2d at 333 (quoting Washington , 429 A.2d at 1365). The cases discussed above dem onstrate, moreover, that the approach the District advocates for would be inconsiste nt with the general methodolog y applied when evaluating the sufficiency of notice under § 12-309. See, e.g. , Feirson v. District of Columbia , 315 F. Supp. 2d 52, 56–57 (D.D.C. 2004) (analyzing no tice with respect to commo n law claims as a group, rather than determining whether notice was sufficient as to each potential theory of liability). And to adopt the District’s position regar ding the specificity with wh ich causes of actions must be20 described “would effectively rea d the police report alternative out of the statute.” Pitts , 391 A.2d
at 810. In sum: A plaintiff’s notice need not “assert[] a claim.” Washington , 429 A.2d at 1366. What matters is that the notice “describe[] the injuring event with sufficient detail to reveal, in itself, a basis for the Distri ct’s potential liability.” Id. (emphasis added). Courts, moreover, “generally ‘resolve doubts in fa vor of finding compliance with the statute.’” Maddux , 144 F. Supp. 3d at 148 (quoting Wharton , 666 A.2d at 1230). The requirements of § 12-309 “with respect to the content of the notice . . . are to be interpreted liberally.” Wharton , 666 A.2d at 1230. That is because “the purpose of § 12-309 is not to help the District to evaluate known claims by requiring notice complete enough to state a formal ca use of action;” rather, it is “intended solely to assure the D istrict the opportunity for tim ely access to all relevant facts about a potential claim, in order to prot ect the District against an unfair advantage by the eventual claimant.” Id. at 1368 (holding that a letter fro m counsel stating that an inj ury occurred in a District-owned building suffice d to give notice of a negligence claim against the District). Although a close question, the Court concludes that Plaintiffs’ notice does that by detailing Plaintiffs’ injuries at the hands of two District employees, re ferring to an invest igation that was launched as a result of those all eged misdeeds, stating that th e notice was “not intended to be a complete recitation of all appli cable law and/or facts,” and “e xpressly reserv[ing] . . . [Plaintiffs’] right[s] to all available remedie s against the District of Colu mbia.” Dkt. 19 at 31. The Court will, accordingly, deny Defendants’ motion for summ ary judgment as to Plaintiffs’ common law negligen t training and supervision claim s on notice grounds.
2. Failure to State a Claim Defendants next argue that Plai ntiffs’ claims of negligent supe rvision and training, whether framed as arising under § 1983 or the common law, shoul d be dismissed for failure to21 state a claim. With respect t o the common law tort claims, 6 Defendants assert that “Plaintiffs fail to allege any specific facts about the District’s actual or con structive knowledge or that the District failed to adequately supe rvise Defendant Officers.” D kt. 13 at 16

. As to the § 1983 claims, Defendants argue that “ Plaintiffs have not identified a ny ‘particular[’] deficiencies as to the supervision of officers that c ould be said to have led to aviolation of Plaintiffs’ rights.” Id.
at 17–18. Plaintiffs do not, in substance, di fferentiate between their co mmon law and § 1983 claims in responding to Defe ndants’ arguments. 7 Instead, they respond gene rally that they had sufficiently pled negligent supervision and training claims bec ause their complaint contains allegations that “the proper training or supervision would have enabled the Officers to understand that a police officer cannot use excessive physical force against an individual when, as in this case, that individual has not committed any criminal offense;” that “the conduct of Defendants . . . will frequently result in the deprivation of the constitutional rights of

6 Although listed separately in the complaint, Count IV (Neglig ent Training) and Count V (Negligent Supervision) contai n the same allegation of negligen t failure to provide “proper training or supervision.” Dkt . 1 at 12–14 (Compl. ¶¶ 52–65). Defendants treat the claims as a single cause of action under the common law and a single theoryof § 1983 liability in their briefing, rather than distinguish ing the factual or legal argum ents underlying negligent “supervision” as opposed to “tr aining.” Dkt. 13 at 15–18; Dkt. 21 at 2–4. Plaintiffs purport to distinguish between the claim s in their opposition, but again r epeatedly refer to “training and supervision” rather than disti nguishing the theories of liabili ty. Dkt. 19 at 16–20. Courts in this district generally consider such c laims as different flavors of the same tort. See, e.g. , Harvey v. Kasco , 109 F. Supp. 3d 173, 179 (D.D.C. 2015); Rawlings v. District of Columbia , 820 F. Supp. 2d 92, 114–15 (D.D.C. 2011). The Court, accordingly, analyzes the allegations together, but concludes that even if it were to address the adequacy of the p leadings with respect to training and supervision separately, Plain tiffs would still have failed to state a claim under either rubric.

7 Defendants argue that Plain tiffs have not addressed Defendant s’ arguments regarding the common law claims, and urge the Cour t to treat the claims as co nceded. Dkt. 21 at 3. Because Plaintiffs have, in any event, fa iled adequately to plead eithe r tort under the common law, the Court need not consider whether Plaintiffs’ opposition concedes the point.22 individuals;” that “the violati ons of the Plaintiffs’ constitut ional rights complained of were negligent and caused by customs , policies, and/or practices of authorized policymakers of Defendant District [of] Columbia ;” that “supervisory officials of Defendant D istrict of Columbia’s Metropolitan Poli ce Department . . . encouraged, authorized, directed, condoned, and/or ratified the unconstitutional and unlawful conduct compl ained of in [the] C omplaint;” and that the District was deliberately indifferent, and condoned, and/or ratified and failed to properly train or supervise Defendant Officers in the use of fo rce, enforcement of District of Columbia laws, street encounters with individuals l awfully on the streets of the District of Columbia, f ailing to investigate and impose discipline on police officers who employ improper police investigation methods, and failing to take remedial or disciplinary action against the Defendant Officers. Dkt. 19 at 16–20; see also Dkt. 1 at 3–5 (Compl. ¶¶ 12–17); id. at 12–14 (Compl. ¶¶ 52–65). The Court first considers whethe r Plaintiffs have adequately al leged common law claims for negligent supervision and training. In the District of Col umbia, a party asserting a claim for negligent supervision or traini ng must allege “that an employer knew or should have known its employee behaved in a dangerous or otherwise incompetent manner , and that the employer, armed with that actual or cons tructive knowledge, failed to ade quately supervise [or train] the employee.” Giles , 487 A.2d at 613 (emphasis omitted); see also Blakeney v. O’Donnell , 117 F. Supp. 3d 6, 20 (D.D.C. 2015); Brown v. Argenbright Sec. Inc. , 782 A.2d 752, 759–60 (D.C. 2001). Plaintiffs do not allege that the District of Columbia had “actual or constructive knowledge” of any problematic beha vior on the part of the offic ers in question before the incident at issue here. The bul k of the complaint instead cons ists of conclusory statements that the District failed properly t o supervise and to train the offi cers at issue without reference to any of the necessary legal elements. See, e.g. , Dkt. 1 at 13 (Compl. ¶ 59) ( “[T]he District of Columbia was deliberately and ne gligently indifferent, and fail ed to properly train or supervise23 the Defendant Police Officers . . . .”). Construing the compla int to state a claim for negligent supervision or training require s inferring that the District kn ew or should have known about “dangerous or otherwise incomp etent” behavior prior to Plaintif fs’ arrests from two allegations: (1) the alleged failure of “the s upervisors of the MPD” to “san ction or condemn the actions of the officers” who arrested Spiller and McCray, and (2) the alle ged failure of the supervisors to “reverse the decisions”—presumab ly to arrest the men—“made in e ither Plaintiff’s case.” Id. at 13–14 (Compl. ¶ 59). Even at the motion to dismiss stag e that asks too much. Plaint iffs’ bare allegations of failures to supervise or train after the incident in question do not give rise to a reasonable inference that District or MPD officials were on constructive n otice of dangerous or incompetent behavior by the officers in question prior to when Spiller and McCray w ere arrested. Plaintiffs have not alleged that these offi cers were previously involved i n similar incidents, or that other aspects of their behavior known t o their supervisors would have or should have put their superiors on notice that the offi cers required additional super vision or training. Plaintiffs, moreover, have not alleged any fact s that might plausibly show that the District, as a matter of course, failed to discipline or t o retrain officers after serio us incidents, or thatincidents of the type at issue here o ccurred with such regularity that the Distr ict was on notice of some common propensity among MPD officers. The repeated recitation that “p roper training or supervision would have enabled Defendant P olice Officers” to avoid committi ng the actions giving rise to this suit does not suffice to pl ead a negligent supervision or training claim. See Harvey v. Kasco , 109 F. Supp. 3d 173, 179 (D.D.C. 2015) (hol ding that similar al legations were insufficient to state negligent training o r supervision claim); Rawlings v. District of Columbia , 820 F. Supp. 2d 92, 114–15 (D.D.C. 2011) (holding at su mmary judgment stage tha t negligent training and24 supervision claim requires proof of “behavior before” the incid ent giving rise to an injury). Such exhortations are precisely the sor t of “[t]hreadbare recitals o f the elements of a cause of action, supported by mere conclusory statements” that “do not suffice” to state a claim. Iqbal , 556 U.S.
at 678. That leaves Plaintiffs’ § 1983 neg ligent training and supervisi on claim. Because the District of Columbia is a munici pality for purposes of the stat ute, it “cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 691 (1978). Stating a claim under § 198 3 against the District requ ires the plaintiff to “allege not only a violation of [his or her] ri ghts under the C onstitution or fe deral law, but also that the municipality’s custom or policy caused the violation.” Warren v. District of Columbia , 353 F.3d 36, 38 (D.C. Cir. 2004). That means alleging with at least som e modicum of specificity an “affirmative link, such that a m unicipal policy was the moving force behind the constitutional violation.” Xingru Lin v. District of Columbia , 268 F. Supp. 3d 91, 100 (D.D.C. 2017) (quoting Baker v. District of Columbia , 326 F.3d 1302, 1306 (D.C. Cir. 2003)). Plaintiffs have failed to allege such a link. The complaint co ntains only conclusory references to the District’s fa ilure to train and supervise off icers adequately, without any attempt to specify a causal connecti on between any policy or custom and the complained of behavior.
See Dkt. 1 at 13–14 (Compl. ¶¶ 52–65). S uch “conclusory allegation s . . . that the actions and conduct of the defendant officer s and . . . MPD are the result of a policy, practice, custom and deliberate indifference on the part of Defendant[s] . . . are n ot sufficient.” Xingru Lin , 268 F. Supp. 3d at 100; see also id. (collecting cases in which simila r complaints were dismissed fo r failure to state a claim); accord Iqbal , 556 U.S. at 678. “Only where a fa ilure to train reflects a ‘deliberate’ or ‘conscious’ choi ce by a municipality—a ‘policy’ as defined by our prior cases—25 can a city be liable for su ch a failure under § 1983.” City of Canton v. Harris , 489 U.S. 378, 389 (1989). Plaintiffs have not alleg ed such a choice, instead off ering only the conclusory refrain that some undefined failure precip itated the officer actions at issue. As presently pled, this case more closely resembles the sor t of “encounter[] [with] several poorly trained officers” that, without more, does not state a cla im for municipal liability un der § 1983. See Xingru Lin , 268 F. Supp. 3d at 101. The precedent Plaintiffs cite does not support a different conc lusion. Amons v. District of
Columbia , 231 F. Supp. 2d 109 (D.D.C. 2002), and Atchinson v. District of Columbia , 73 F.3d 418 (D.C. Cir. 1996), were decided p rior to the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal . Before Twombly and Iqbal , a complaint would “not be dismissed for failure to state aclaim unless it appear[ed] bey ond doubt that the plaintiff c[ould] prove no set of facts in support of his claim which would entit le him to relief.” Atchinson , 73 F.3d at 422 (quoting Conley v. Gibson , 355 U.S. 41, 45–46 (1957)). Since Twombly and Iqbal were decided, however, the standard for evaluating a motion to dismiss for failure to state a claim has shifted significantly. Now, “a complaint must contai n sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 570). Rather than the “no set of facts” standard in place at the time Atchinson was decided, today plaintiffs must plead “factual content that allows the court to draw the reasonable inference th at the defendant is liable for the misconduct alleged,” id. , which requires “more than labels and c onclusions, [or] a formulaic re citation of the elements of a cause of action.” Twombly , 550 U.S. at 555. 8

8 Even setting aside the intervening decisions, Atchinson involved an unusual police shooting, which the court characterized a s “misconduct sufficiently serio us and obvious to justify an26 The Court, accordingly, will gr ant Defendants’ motion to dismis s Plaintiffs’ negligent supervision and traini ng claims brought under § 1983.
CONCLUSION For these reasons, the Court hereby GRANTS in part and DENIES in part the Defendants’ motion to dismiss, or i n the alternative, for summary judgment. It is hereby
ORDERED that Counts I and II are MERGED . It is further ORDERED that Counts III, IV, and V are DISMISSED . It is further ORDERED that Counts VI and VIII, to the extent they allege claims under § 1983, are DISMISSED.
SO ORDERED

.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: March 23, 2018

allegation of improper traini ng in the use of force.” 73 F.3d at 422 (emphasis omitted). Plaintiffs allege misbehavior that, while serious, is significa ntly less egregious than the police actions in Atchinson

.